Ben Cardin, free speech, and the art of the dodge

Maryland Senator Ben Cardin responding to criticism of his support for the Israel Anti-Boycott Act during a town hall meeting on August 31, 2017.

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It’s 4:30 pm, and I’m driving from Baltimore down to Rockville, Maryland to join in a protest at Senator Ben Cardin’s Town Hall meeting on healthcare, but also to report on that protest for Mondoweiss.

I turn on the radio. NPR is airing a segment on Hunter S. Thompson, which is entirely fitting, because I have already been planning to engage in a little gonzo journalism myself. In other words, I’ll be covering a story that I’m also part of, without the slightest pretense of neutrality.

Unlike Hunter S. Thompson’s, my car isn’t stocked with cannabis, booze, and hallucinogens; I have, however, scored some McDonald’s. It’s a bad look, but believe me this is not for recreational use.

I’m driving, digging into a pile of fries and guacamole burger on “artisanal bun,” and thinking about the impending encounter with our long-standing AIPAC representative, Senator Cardin, co-sponsor of the dangerous anti-BDS bill snaking its way through both houses of Congress.

Under the current terms of the bipartisan Israel Anti-Boycott Act—which the ACLU forcefully opposes—businesses, organizations, and even individuals who join in the international movement to boycott and divest from the state of Israel can potentially face astronomical fines and even jail time.

As might be expected, my stomach begins to churn. And I’m not sure of it’s the unfavorable food to non-food ratio in my gut, or the idea of our supposedly “liberal” Democratic Senator, trying to defend a piece of unconstitutional legislation that is patently indefensible.

It will be kind of like watching a dancing bear on a leash. The bear performs a series of languid, unconvincing gestures, but the eyes have lost all trace of fire and wildness. You almost want to say, “Poor thing,” until you remember: it’s still a bear.

I arrive in Rockville, “the core of the Interstate 270 Technology Corridor,” a sprawling stretch of business and industrial parks. The Johns Hopkins Rockville Campus looks like it might once have served as an outpost of Enron.

A cross-section of protestors (Photo: Kim Jensen)

The crowd is largely white and over 50—with some Palestinians and other people of color holding down the fort. All in all, we look nothing like Antifa, but simmering beneath the sea of khaki, canes, and polo shirts, there is outrage.

We are outraged that our Maryland Senator has established such an abysmal track record of working directly with the pro-Israel lobby to help orchestrate the ongoing destruction of Palestinian culture, infrastructure, and lives. But beyond his own unwavering political support for so much injustice and suffering, now he wants US citizens to shut up about it too?

That is not an option for activists from groups like Freedom2Boycott, Jewish Voice for Peace, DC-Metro, Baltimore Palestine Solidarity, and others—who have already helped defeat the Maryland version of this legislation and who have sponsored this rally.

Along with many familiar faces, there are some newcomers. A woman named Tracy has driven all the way down from Delaware to be here. She only recently learned about the devastating conditions in Gaza and she is heartbroken. “It’s just too disturbing,” she says, “that it’s our taxpayer money paying for it.”

Reverend Graylan Hagler, turning up the heat (Photo: Kim Jensen)

Reverend Graylan Hagler, Senior Minister of the Plymouth Congregational of the United Church of Christ, gives fiery voice to our commitment both to social justice and free speech. “We have the right,” he proclaims into the megaphone, “not only the right, but we have the duty to apply boycott and sanctions against any form of racism that exists, any form of separation that exists, any form of Jim Crowism that exists.”

His moral clarity and rebelliousness are infectious. As we file inside the lecture hall, many of us are prepared to be a little bit unruly. Saqib Ali, a key activist in Freedom2Boycott, Benjamin Douglas, Nathan Feldman and several others aren’t shy about leading some spirited chants.

It’s a good sized crowd. Many in pro-Palestine/Free Speech camp are carrying bright yellow signs. Many in the single payer healthcare camp are sporting bright yellow t-shirts. With all that matching yellow, you would think that we are on the same team. But no. Some of the healthcare folks are miffed at us for bringing up a separate topic at a Townhall on healthcare; it’s an apparent breach in the order and civility much prized in these quarters.

Cardin is visibly uncomfortable, teetering and swaying as if on the end of an invisible rope, but when he steps forward he agrees to take questions on the anti-BDS bill. This is a sound decision, considering that no one in his entourage wants to watch themselves on Worldstar tomorrow roughing up a bunch of unarmed citizens in orthopedic sneakers.

On healthcare, Cardin’s stated position is better than your average bear. Numerous times—and uninterrupted—he reaffirms his commitment to universal healthcare, articulating the idea that healthcare a human right. This sounds great in theory, which is why we are ALL of us are listening so intently, but his support for enacting single-payer is subject to a stream of clauses and caveats. Nevertheless,every person in line who asks him a question on healthcare is afforded a thorough, generous response.

Not so on Palestine. This is where the seasoned politician begins to practice the art of the dodge.

When Nathan Feldman poses a pointed question about whether Cardin will remove the criminal penalties that are part and parcel of the current anti-BDS bill, Cardin refuses to answer directly, although he does say that he is “not interested in using criminal sanctions” against those who violate the statute.

When Samira Hussein, a long-time local activist speaks about the tacit exclusion of Muslims from this event, the unthinkable persecution of her family in Palestine, and her fear of being thrown into jail because of this bill, Cardin offers a canned speech about respecting diversity and his belief in the immigrant community (!). He then reiterates his dubious claim that his bill does not and will not impose criminal penalties, and that the ACLU will agree with him on this.

Saqib Ali, walking the walk, talking the talk (Photo: Kim Jensen)

Activist Benjamin Douglas has been waiting in line to speak, but Cardin’s aide, Ken Reichard, won’t even let him pose a question. Reichard passes the microphone to the man behind him, twice. The second time, protestors drown the room in sharp cries.

I, too, jump into the fray to the utter dismay of the fawning Cardin supporter camped out next to me. She tells me to shut up, but I don’t, not until the powers-that-be finally allow Benjamin to make his impassioned plea on behalf of Palestinian rights.

The Senator then offers up the same hackneyed talking points of how this problem is caused by “both sides,” emphasizing how much work the US has put into solving this “tragic situation.” It’s “John Kerry” this and “Two States” that.

The room erupts in the chant, “Cut the money! Cut the money!” Cardin smiles awkwardly, because he knows that cutting unconditional aid to Israel is a non-starter. He personally receives hundreds of thousands of AIPAC-generated dollars and that relationship has stood the test of time. Too much time.

Over the course of these testy exchanges (in which the Senator doesn’t even give Reverend Hagler the time of day), Cardin does repeat two important claims that demand some follow up. He has repeatedly pledged that under his legislation, individual free speech will be protected. He also makes the claim that the ACLU will admit that they were wrong in their original negative assessment of the bill.

“I have a great deal of respect for the ACLU,” he says. “I would ask you to go back and talk to the ACLU because their initial letter was not accurate, and I think they will acknowledge that to you.”

Okay. Fine. We will do that.

Farhana Kara Motala, making a statement (Photo: Kim Jensen)

A few days after the Town Hall is over, and we’ve all resumed watching the frightening spectacle of hurricanes and wildfires decimating whole swaths of the continent, Saqib Ali writes an email to Ajmel Quereshi, a board member of the ACLU of Maryland who works closely with the national office. I talk to him myself on the telephone, on the record, because even though I’m doing my gonzo journalism thing, I’m big on facts.

And the fact is: The ACLU does NOT retract their original letter concerning this anti-BDS legislation. They stand by their position, which Quereshi articulates in very plain terms. “The bill seeks to punish people for engaging in political boycotts which the Supreme Court has held as constitutionally protected by the first amendment.”

And what does Quereshi say about Cardin’s promise to not criminalize individual activists—does that assurance make any difference? “If he is willing to strike the criminal and civil penalties in the bill,” Quereshi says, “that is a step in the right direction, but it wouldn’t solve all the problems. The bill would still dissuade individuals from exercising their rights under the first amendment.”

This is called the “chill” effect. This type of legislation produces fear, intimidation, and self-censorship. This may not have an impact on the feisty organizers who are in this for the long haul, but it would definitely throw a wet blanket over those who are on the fence, but leaning.

Senator Cardin has a clear choice before him. He can continue to dance and dodge his way down the unethical and undemocratic path of representing the interests of AIPAC and the pro-Israel lobby, or he can listen to his constituents and the respected lawyers of the ACLU,and kill this bill.

He can’t have it both ways.

About Kim Jensen

Kim Jensen (www.kimjensen.org) is a Baltimore-based writer, poet, and educator who spends a great deal of time in historic Palestine. Her books include a novel, The Woman I Left Behind, and two collections of poems, Bread Alone and The Only Thing that Matters.

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9 Responses

Thanks for the excellent reportage. It’s funny when you are in a room with a politician and you know hey are funded by a specific special interest, they know they are funded by a specific special interest, but it is not named. I think directness is often lacking in our political discourse. Honesty and facts are also lacking in the American political system, but that’s another conversation for another day.

Hit Mr. Cardin where it REALLY hurts. Send him a letter demanding he change his tune, or you will actively campaign against him in his next election, and donate the maximum allowed to whoever runs against him.

As a member (in absentia) of the racist Zionist Knesset, Ben Cardin should move to racist Zionist Tel Aviv to continue his practice of discrimination and opposition to freedom of speech and not in the State of Maryland. Ben Cardin displays utter contempt for all that is fundamental to democracy and is a disgrace to the U.S. Senate!

MSNBC is like the “anti-matter” version of Fox News. They seems to have copied the format of lies and misinformation needed to push whatever agenda is at hand. I don’t believe much of anything on TV anymore. Oh where is Uncle Walter?

RE: And the fact is: The ACLU does NOT retract their original letter concerning this anti-BDS legislation. They stand by their position, which Quereshi articulates in very plain terms. “The bill seeks to punish people for engaging in political boycotts which the Supreme Court has held as constitutionally protected by the first amendment.” ~ Kim Jensen

■ “No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. Only an emergency can justify repression.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

■ “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

[EXCERPTS] Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. . .

. . . The Whitney case is most noted for Justice Louis Brandeis’s concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.[1] Justice Brandeis and Justice Holmes concurred in the result because of the Fourteenth Amendment questions, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority and supported the First Amendment.

Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not only an abstract virtue, but a key element that lies at the heart of a democratic society.

Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a “time to answer” test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.

Justice William O. Douglas believed that had Brandeis lived longer, he would have abandoned the clear and present danger test; Whitney is in fact the precursor to the position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of speech is absolutely protected under the First Amendment. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), which explicitly overruled Whitney.

Whitney was later pardoned by the Governor of California based on Justice Brandeis’ concurring opinion. . .

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